AP: Narrow ruling rejects Ohio gay marriage ban

Monday, December 23, 2013 8:42 AM

CINCINNATI (AP) - A federal judge ordered Ohio authorities Monday to recognize gay marriages on death certificates, saying that the state's ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don't like homosexuality.

Although Judge Timothy Black's ruling applies only to death certificates, his statements about Ohio's gay-marriage ban are sweeping, unequivocal and expected to incite further litigation challenging the law.

Black cited a prediction by U.S. Supreme Court Justice Antonin Scalia, who wrote in a strong dissenting opinion in June that the court majority's decision to strike down part of an anti-gay marriage law would lead to a rash of state challenges.

Black said the prediction came true and now the lower courts must apply the high court's ruling.

"The question presented is whether a state can do what the federal government cannot - i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004)," Black said in reference to the year Ohio's gay marriage ban passed. "Under the Constitution of the United States, the answer is no."

New Mexico's high court issued a ruling last week legalizing gay marriage there, and a day later, a federal judge struck down a ban on the practice in Utah, bringing to 18 the total number of states that allow same-sex weddings, plus the District of Columbia. That's up from six before the Supreme Court decision.

Black wrote that "once you get married lawfully in one state, another state cannot summarily take your marriage away," saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

Black referenced Ohio's historical practice of recognizing other out-of-state marriages even though they can't legally be performed in Ohio, such as those involving cousins or minors.

Black's decision stems from a lawsuit filed in July by two gay Ohio men whose spouses recently died and wanted to be recognized on their death certificates as married. The two couples got married in states that allow same-sex marriage.

Black heard arguments from attorneys on both sides Wednesday about whether the couples and others like them should be able to have their marriages recognized on Ohio death certificates.

Bridget Coontz, the state's attorney who argued against doing so, said that in the Supreme Court's historic June decision, the justices also found that states have the right to decide for themselves whether to recognize gay marriage, and Ohio voters decided not to in 2004.

"Ohio doesn't want Delaware or Maryland to define who is married under Ohio law," she said. "To allow that to happen would allow one state to set the marriage policy for all others."

Civil rights attorney Al Gerhardstein argued to Black that the case was "about love surviving death" and said that the state had no right to recognize certain out-of-state marriages and not others.